CAFC Denies Rehearing Bid in AD Suit on AFA for Missing Manufacturing Info
The U.S. Court of Appeals for the Federal Circuit last week denied exporter Salzgitter Flachstahl's bid to have the court rehear its case on the use of partial adverse facts available against the company in the antidumping duty investigation on cut-to-length carbon and alloy steel plate from Germany. Judges Alan Lourie, Timothy Dyk and Jimmie Reyna denied the petition for panel rehearing, leading the court to issue its mandate in the case on Aug. 26 (AG der Dillinger Huttenwerke v. U.S., Fed. Cir. # 24-1219).
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Salzgitter argued that the panel seemingly ruled against its proposed methodology for addressing missing manufacturer information for around 28,000 of its downstream sales made in Germany by one of its affiliates based on a misunderstanding of the methodology.
During the investigation, Salzgitter offered three alternatives to reporting the manufacturing information: treating none of the sales as Salzgitter-made plate, treating all the sales as Salzgitter-made plate or treating only a portion of each sale as Salzgitter-made plate, with each alternative leading to a zero percent dumping margin. The Commerce Department rejected all three and used partial AFA for the gap in the record.
Lourie, Dyk and Reyna upheld this approach in June in light of the insufficient alternatives suggested by Salzgitter (see 2506170084). Regarding the company's third option, which treated a part of the 28,000 sales as home market sales, the court said the proposal was "insufficient," saying it merely assumes, without evidence, that the portion of sales the company would designate as home market sales is the same proportion that was identified as Salzgitter's in the dataset. The court said Salzgitter should have suggested using a random sample of the sales.
Salzgitter urged the panel to reconsider its position on the grounds that "the panel apparently misunderstood the data used under Option 3," and "the panel’s conclusion is contradicted by accepted statistical principles" (see 2508040042). The company added that if sampling "would have been sufficient (which necessarily introduces sampling error), then using the entire population, as in Option 3, leading to zero sampling error, would also be reasonable."